People v. Smith
| Decision Date | 19 October 1957 |
| Citation | 4 A.D.2d 914,167 N.Y.S.2d 129 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Warren Clarence SMITH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Earl I. Bliss, Lake Placid, for appellant.
Daniel T. Manning, Dist. Atty., Ausable Forks, for respondent.
Before FOSTER, P. J., and BERGAN, COON, HALPERN and GIBSON, JJ.
Appeal from an order of the County Court of Essex County which denied, without a hearing, a motion by appellant in the nature of a writ of error coram nobis for an order vacating a judgment rendered November 12, 1952, upon defendant's conviction, on a plea of guilty, of the crime of grand larceny in the second degree.
The application was upon the ground that defendant was deprived of his right to a speedy trial. Code Cr.Proc. §§ 8, 668. At the time of his indictment he was in custody in another county under another charge, upon which he was subsequently convicted and sentenced to imprisonment. Upon completion of that sentence he was returned to Essex County and was promptly arraigned and shortly convicted under the indictment found two years before. Prior to such conviction, defendant's counsel moved to dismiss the indictment on the ground of the denial of the right to a speedy trial. The motion was denied and defendant thereupon pleaded guilty.
If, under the circumstances of the particular case (see People v. Prosser, 309 N.Y. 353, 357, 130 N.E.2d 891, 894), the Court erred in denying the motion to dismiss, the error was one of law and was apparent upon the record. Remedy by way of appeal from the judgment of conviction rendered the same day, which would have brought up for review the denial of the motion to dismiss, was immediately available to defendant. See People v. Chirieleison, 3 N.Y.2d 170, 164 N.Y.S.2d 726. The existence of such remedy precluded that of coram nobis. People v. Sullivan, 3 N.Y.2d 196, 165 N.Y.S.2d 6.
Order unanimously affirmed.
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